How would the Family Courts decide where Theo and David should live in ITV drama 'Playing Nice'?

The Basic Storyline

The story goes like this: two couples – stay at home dad Pete and his chef wife Maddie, and wealthy Miles and his wife Lucy both learn that the sons they’ve spent the last three years loving and raising are not in fact theirs, at least not biologically. Due to a hospital mix-up, they've been raising each other's children.

“We think you left the hospital with another couple’s son, and they left with your biological son,” the CEO of Cornwall’s Hospital Trust tells Pete and Maddie during one of the drama's early scenes. The couple ask desperately “But how can you be so sure?” There were only two premature babies admitted that day, they’re told. Theo isn't theirs. But David, who has been raised by Miles and Lucy, is.

At first both couples appear to come to an agreement. They will each keep the child they’ve raised, but play a role in their biological child’s life, too. So far, so amicable. But this doesn’t last and by the end of the first episode it is revealed that from the outset Miles wants custody of both boys.

Baby Swaps in Fiction & in Real Life

Babies are occasionally switched at birth or soon thereafter, leading to the babies being unknowingly raised by parents who are not their biological parents.

It has regularly been a plot device in fiction since the 18th century, including Gilbert and Sullivan’s HMS Pinafore and The Gondoliers by Mark Twain and in the original French Beauty and The Beast, as well as in numerous books and TV dramas including Coronation Street (Ryan and Alex), before Playing Nice.

Despite this, the occurrence has historically rarely been discovered in real life, but since the availability of genealogical testing of DNA has been discovered more frequently.

Cases where babies have been accidentally swapped on maternity wards are practically unheard of in the UK.

In response to a 2017 Freedom of Information request, the NHS replied that as far as its records showed, there were no documented incidents of babies being sent home with the wrong parents.

There is one UK case involving two baby girls, now grown women named in reports only as Claire and Jessica, who were switched at an NHS West Midlands hospital shortly after birth in in 1967. The truth was discovered only after the brother of one of the women took a DNA test in 2021, which listed another woman as his full sibling. The NHS trust that oversees the hospital has admitted liability, but the level of compensation is yet to be agreed. There is no UK case law or precedent as to how this will be calculated.

Deciding Where a Child Should Live

The narrative of Playing Nice raises important questions about how the Courts decide where a child should live, and the complexities of parental responsibility, family identity and attachments.

Mediation & Interim Arrangements

It is necessary to attend a family mediation information and assessment meeting (MIAM) before any application is made to the court. The four adults in the drama are shown to attend a mediation session to see if any agreement can be reached. This takes place in Miles and Lucy’s home which would be very unusual.

Unsurprisingly no agreement is reached and the matter proceeds (somewhat quickly) to Court.

The parents reluctantly agree interim arrangements about where the children should live and for contact. Miles and Lucy have contact with Theo whilst Pete and Maddie have supervised contact with David due to child protection concerns which have been raised.

First Court Hearing

In 'Playing Nice' there are several Court hearings to make decisions about the children. Miles and Lucy make an application for a Child Arrangements Order for their biological son Theo and for David who has lived with them since birth. Pete and Maddie also decide to fight for both children. The parents would be able to apply to the Court for their non-biological child without needing leave as a person with whom the child has lived for a period exceeding 3 years.

At the first hearing the Judge rightly describes it as “clearly an unusual and difficult case” and requests an additional safeguarding report from the Family and Court Advisor Lyn Edwards and a psychological report as well as drug testing of Pete and Maddie. She also approves the recommendation from CAFCASS for Theo’s residence to be switched following his release from hospital.

What Factors will the Court Consider?

A Child Arrangement Order (s8 Children Act 1989) can specify who a child shall live with (previously called a Residence Order). The order may be made in favour of more than one person, and arrangements for where a child is to live may be shared. A Child Arrangement Order may also regulate the arrangements regarding when and where contact shall take place.

When making a Child Arrangement Order, the child's welfare is the Court’s paramount consideration.

The Court must consider the statutory checklist contained in the Children Act 1989, Section 1(3) and any other factors that the Court considers relevant.

Second Court Hearing

The fourth episode includes the second hearing. Before this Pete and Maddie are shown going through the final CAFCASS report with their Solicitor which recommends a permanent change of residence for Theo. The four parents are shown giving evidence after the evidence of the psychologist Elliot Taylor discussing parenting styles, the children’s behaviours, attachment to the adults and the likely impact on them of any change. To varying degrees, the parents find the experience of giving evidence harrowing, raising difficult areas of their parenting, their medical and relationship history.

Due to the plot development of the CCTV video evidence the Judge describes this as an “extremely difficult case” and is unable to make a final decision. Theo moves back to Pete and Maddie, and Miles is ordered to leave the home.

We do not see the Judge making a final decision, and she would not need to as Maddie, Pete and Lucy at the end are all happy with the arrangements for the children.

Comment

The law and procedures shown in the drama are, on the whole, accurately portrayed, much more so than most TV dramas. For plot purposes the case comes to trial very quickly complete with medical evidence, and there are some inaccuracies (for example when Miles’ mother comes into a private Court hearing without permission.)

If this were a real case, and if matters had not taken such a dramatic turn, then it would be very complex and difficult for CAFCASS to make recommendations and for a Judge to decide whether each child should live with their biological parents or the only family they had known for most of their lives.

We are not aware that there is any real case where such a decision has been made in the UK. The decision would be made in accordance with the principles set out in the Children Act 1989 and the child’s welfare would be the Court’s paramount consideration (Section 1(1)).

How Can Timms Help You?

Our family team are very experienced in dealing with all aspects of the law relating to children & care proceedings. We can be contacted on freephone 0800 011 6666 or via email at legal@timms-law.com. Alternatively feel free to check out the Family Law section of our website to see how Timms can help you.